Indira, W/o Madhu v. The Reliance General Insurance Company Ltd.

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 30[TH] DAY OF MARCH 2023 / 9TH CHAITHRA, 1945 ``` ## `MACA NO. 1845 OF 2017` ``` [AGAINST THE AWARD DATED 30.11.2016 IN OP(MV)NO.1112/2013 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, IRINJALAKUDA] ``` ## `APPELLANT/PETITIONER:` ``` INDIRA, W/O.MADHU, PONNENKANDATH HOUSE,KAROOR DESOM, KODAKARA VILLAGE, MANAKULANGARA P.O, MUKUNDAPURAM TALUK. ``` ``` BY ADV SRI.P.V.BABY ``` ## `RESPONDENT/3RD RESPONDENT:` ``` THE RELIANCE GENERAL INSURANCE COMPANY LTD., VANCHIKULAM ROAD, THRISSUR-680 001. ``` ``` BY ADV SRI.R.AJITH KUMAR (128/84) SRI.TAPAS VARMA, SC ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1845 OF 2017 ``` ``` -2- ``` ## `JUDGMENT` ``` This matter is of the year 2017 and has not been admitted. However, both sides are ad idem that it can be disposed of, after being formally admitted, based on the undisputed evidence on record, handed over by them across the Bar. I, ``` ``` therefore, admit this Appeal and proceed to dispose it of finally, with the consent of both sides. ``` ``` 2.The appellant was injured in a road ``` ``` accident on 20.07.2013, when the motorcycle in which she was riding as a pillion was collided with the offending vehicle, driven in a rash and ``` ``` negligent manner. She suffered very grievous injuries and had to be treated for a long period of time, including for 35 days as an inpatient; and she, therefore, filed OP(MV)No.1112/2013 before the Motor Accidents Claims Tribunal, ``` ``` MACA NO. 1845 OF 2017 ``` ``` -3- ``` ``` Irinjalakuda (‘Tribunal’, for short), seeking an amountofRs.16,23,000/-,limitedto Rs.10,00,000/-; but which has been allowed to a sum of Rs.4,28,700/. She assails the compensation as being inadequate. ``` ``` 3.Sri.A.N.Santhosh – learned counsel for ``` ``` the appellant, vehemently argued that the notional income adopted by the Tribunal in his client’s favour is extremely exiguous because she was a tailor earning Rs.15,000/- per month, but which has been reckoned to be only Rs.5,000/-. He then submitted that, even though the appellant was hospitalized for 35 days, the learned Tribunal took it to be only 10 days and has then awarded compensation under various heads with much lesser figures as is entitled, particularly for “Extra Nourishment”, “Bystander Expenses”, “Pain and Suffering” and “Loss of Amenities”. He thus prayed that this Appeal be ``` ``` MACA NO. 1845 OF 2017 ``` ``` -4- ``` ``` allowed. ``` ``` 4.Sri.Tapas Varma – learned Standing Counsel for the Insurance Company, on the other hand, submitted that the computations adopted by the Tribunal, in arriving at the compensation in favour of the appellant, are without any error; and thus prayed that this Appeal be dismissed. ``` ``` 5.I have considered the afore rival ``` ``` submissions on the touchstone of the evidence on record – copies of which have been handed over across the Bar by the learned counsel for the parties with the express consent that it can be acted upon by this Court without dispute. ``` ``` 6.I must say that there is great force in the submissions of Sri.A.N.Santhosh with respect to the income adopted by the Tribunal in favour of the appellant. This is because, even when I find favour with it in having concluded that there is no evidence at all to prove the ``` ``` MACA NO. 1845 OF 2017 ``` ``` -5- ``` ``` appellant’s assertion that she is a tailor or that she was earning Rs.15,000/- per month, and the learned Tribunal ought to have then relied upon the postulations inRamachandrappa v. Manager, Royal Sundaram Alliance Insurance ``` ``` Company Ltd. [(2011) 13 SCC 236] while fixing her notional income. As per this judgment, even in the case of a person who is a ‘Coolie’, or ``` ``` one without an unascertainable income, in the year 2013 – when the accident occurred – the minimum figure to be reckoned is Rs.9,000/-. I do not see why the Tribunal denied this to the appellant. ``` ``` 7.The medical evidence on record, particularly Ext.A2 – Wound Certificate, establish that the appellant had suffered the following injuries: ``` ``` “1.Fracture occipital bone on (R)side. ``` ``` 2.Extradural hematoma in the post fossa of thickness 21 mm ``` ``` MACA NO. 1845 OF 2017 ``` ``` -6- ``` `3. SAH, diffuse brain oedema` `4. Midline shaft of 6mm right and subfalcine.” (sic)` ``` 8.The learned Tribunal has also found that ``` ``` the appellant is suffering from “hyposmia ``` ``` (impaired sense of smell) and hypogeusia ``` ``` (reduced sense of taste)”, though there is no ``` ``` total loss of smell or taste. In fact, all these ``` ``` had been taken into account by a competent ``` ``` doctor, while issuing Ext.A9 – Certificate, to ``` ``` certify that the appellant suffers 19% ``` ``` “Permanent Disability”; which has been, however, ``` ``` reduced by the Tribunal to 14%, on the ground ``` ``` that same has not been issued by a competent Medical Board. I do not find any error in this ``` ``` because, in the absence of credible inputs with respect to the competence of the said doctor to ``` ``` have certified the disability under all heads, ``` ``` the Tribunal cannot be seen to have committed ``` ``` MACA NO. 1845 OF 2017 ``` ``` -7- ``` ``` any mistake in reducing the percentile of disability to ‘14’. ``` ``` 9.That said, however, the injuries ``` ``` sustained by the appellant cannot be seen to be trivial at all, particularly the fractures to her occipital bone. The appellant being a lady, ``` ``` the trauma and agony would have been much higher ``` ``` because she was unable to take care of herself ``` ``` and the family during the period of time when she had to undergo treatment and for the ``` ``` fractures to be united. I have, therefore, no ``` ``` doubt that the compensation under the heads ``` ``` “Pain and Suffering” and “Loss of Amenities” ``` ``` requires to be marginally increased; which I ``` ``` propose as being Rs.50,000/- and Rs.30,000/-, ``` ``` respectively. ``` ``` 10.As regards the compensation awarded under the heads “Extra Nourishment” and ``` ``` “Attendant Expenses”, I see that the learned ``` ``` MACA NO. 1845 OF 2017 ``` ``` -8- ``` ``` Tribunal had reckoned an amount of Rs.250/- and Rs.300/- per day respectively, but confining the period to be 10 days, which appears to be factually incorrect, since the medical evidence shows that she was, in fact, hospitalized and treated as an inpatient for 35 days. Obviously, even though the per day expenses reckoned by the Tribunal is not in error, the figures will have to be corrected, taking into account the actual period of treatment as an inpatient. ``` ``` In the afore circumstances, this Appeal is ``` ``` allowed in the following manner: ``` ``` (a) The compensation under the head ``` ``` “PermanentDisability” isenhancedto Rs.1,96,560/- (Rupees one lakh ninety six ``` ``` thousand five hundred and sixty only), from ``` ``` Rs.1,09,200/-, reckoning the notional income of the appellant to be Rs.9,000/- per month and retaining the percentile of disability to be ``` ## `MACA NO. 1845 OF 2017` ``` -9- ``` - `‘14’, as correctly found by the learned` ``` Tribunal. ``` - `(b) Axiomatically, the compensation under` ``` the head “Loss of Earnings” is enhanced to Rs.36,000/- (Rupees thirty six thousand only) from Rs.20,000/-, reckoning the notional income ``` ``` of the appellant to be Rs.9,000/- per month for ``` ``` a period of four months, as correctly found by the learned Tribunal. ``` - `(c) The compensation under the head “Extra` ``` Nourishment” is enhanced to Rs.8,750/- (Rupees ``` ``` eight thousand seven hundred and fifty only), ``` ``` from Rs.2500/-, accepting the per day expenses ``` ``` to be Rs.250/- as correctly reckoned by the ``` ``` Tribunal, but enhancing the period as being 35 ``` ``` days of hospitalization. ``` ``` (d)The compensation under the head ``` ``` “Attendant Expenses” is enhanced to Rs.10,500/- ``` ``` (Rupees ten thousand five hundred only), from ``` ``` MACA NO. 1845 OF 2017 ``` ``` -10- ``` ``` Rs.3,000/- accepting the per-day expenses to be Rs.300/- as correctly reckoned by the Tribunal, but enhancing the period as being 35 days of hospitalization. ``` ``` (e)In all other heads, the compensation granted by the Tribunal will remain intact. ``` ``` Consequently, the appellant will be at full ``` ``` liberty to recover the compensation, as enhanced by this Court, from the Insurance Company, along with interest at the rate of 8.5% (modifying the ``` ``` rate of interest of 9% granted by the Tribunal, ``` ``` in view of the escalation granted by this ``` ``` Court), from the date of claim until it is ``` ``` recovered.She will also be entitled to ``` ``` proportionate costs on the enhanced amount as ordered by the Tribunal. ``` ``` In view of the afore, the amount as fixed ``` ``` above shall be deposited by the Insurance Company before the Tribunal, within a period of ``` ``` MACA NO. 1845 OF 2017 ``` ``` -11- ``` ``` two months from the date of receipt of a copy this judgment. ``` ``` Sd/- ``` ``` DEVAN RAMACHANDRAN ``` ``` JUDGE ``` ``` akv ```